Laguna Hills Child Custody and Visitation Attorney
California Family Code Section 3040 addresses matters to be considered by the family law court in granting custody. According to 3040 (a), “Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020: (1) to both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Sections 3011 and 3020, and shall not prefer a parent as custodian because of that parent's sex.” This section is critically important, because there are some parents that do not want to share the child or children at all with the other parent.
Family Code Section 3007 states, “Sole Physical Custody means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.” Joint physical custody allows both parents to have substantial periods of physical custody. Family Code Section 3084 states, “In making an order for joint physical custody, the court shall specify the rights of each parent to physical control of the child in sufficient in sufficient detail to enable a parent deprived of that control to implement laws for relief of child snatching kidnapping.” Family Code Sections 3004 and 3007 state that the terms of custody are sole physical and joint physical custody, but the court and parties will sometimes say “primary” physical custody to the parents. However, “primary” physical custody is not labeled in Sections 3004 and 3007. Accordingly, the parties should be careful about the language that is used especially with regard to income tax exemptions for dependents and public assistance programs since there could be confusion in interpreting the language. Also, many judges will say these are just terms anyway, and the specific child custody orders control who has the child at the specific times.
Family Code Section 3006 defines sole legal custody. “Sole legal custody means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” Family Code Section 3003 defines joint legal custody. In ordering sole legal custody, the court must consider a number of factors, including which custodial parent is more likely to allow the child frequent and continuing contact with the noncustodial parent. “Joint legal custody means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” Family Code Section 3083 states, “In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court.” The court regularly orders joint physical custody to both parents. There needs to be a good reason for the court to order sole legal custody to one parent. Under Family Code Section 3020(a) child abuse or an act of domestic violence in the child's household may allow the court to grant sole legal custody to the victim parent since the court's primary concern is the health, safety and welfare of the children.
Laguna Hills Child Custody Lawyer Joseph Torri represents clients throughout Orange County, California on their family law cases that contain elements of domestic violence both in criminal court and family law court. Litigants dealing with domestic violence in the family law court often deal with temporary restraining orders and domestic violence restraining orders. The Lamoreaux Justice Center is the family law courthouse in Orange County, California. The Central Justice Center Courthouse located in Santa Ana, California handles some family law cases, but primarily deals with criminal cases including criminal domestic violence charges. There are significant consequences to a parent's right to child custody and visitation if the court makes domestic violence findings. In fact, Family Code Section 3044(a) states, “Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child.”
Parents should be very careful about false allegations of domestic violence when they decide a break-up of the relationship is happening. Many individuals are falsely accused of domestic violence since a finding of domestic violence will be used against the aggressor. Frequent scenarios come up where one parent peacefully dropped off the child at the other parent's house, but law enforcement gets called with a report that an assault or battery occurred. Law enforcement takes a report from the reporting parent, and then attempts to get a statement from the alleged aggressor. The alleged perpetrator can find him or herself in custody with a need to bail out of jail. The innocent parent finds him or herself in a nightmare scenario while the alleged victim generally files for a temporary restraining order with child custody and visitation orders that can severely impact the initial proceedings of a family law case.
The innocent parent will definitely be in need of an Orange County Family Law attorney to represent him or her dealing with issues of child support, child custody and visitation and most likely divorce if they were married. The parties would generally file a paternity action with the court if they were not married. Having a skilled Laguna Hills Divorce Attorney is critical, especially since California is a community property state. Family Code Section 760 defines Community Property as “Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.”
Even if domestic violence is not at-issue in a family law case, child custody and visitation covers a broad range of issues. Each parent generally wants to spend as much time with their children as possible. In fact, some parents want to spend all of the time with the children. Move-away or relocation cases arise in family law court every day in every jurisdiction in the country. Move-away cases address situations when one parent literally wants to move-away with the child far way, generally to another state. Move-away cases require a lengthy discussion. Consulting with a Costa Mesa or Newport Beach family law attorney is critical, especially when one parent is awarded sole legal and sole physical custody based on domestic violence findings. Some parents enter into stipulations allowing the other parent to have sole legal and sole physical custody without getting legal advice since they may not know the consequences of making such agreements. The Law Offices of Joseph Torri represent clients in Orange County, California. We have convenient office and meeting locations near the communities of Aliso Viejo, Mission Viejo, Laguna Hills, Laguna Beach, Rancho Santa Margarita, Orange, Fullerton, Costa Mesa, Newport Beach, Brea, Yorba Linda, Huntington Beach, La Palma, Buena Park, Santa Ana and the surrounding cities.